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Toxic Tort & Product Liability Quarterly Toxic Tort & Product Liability Quarterly Vol. 10, No. 4, November 6, 2017 Editors TABLE OF CONTENTS Eric L. Klein Principal PFOA Property Ownership and Water Supply Sources Matter in PFOA (202) 789-6016 [email protected] Contamination Lawsuits ................................................................................................................ 2 Lone Pine Graham C. Zorn Federal Court in California Greenlights Discovery After Sufficient Associate Lone Pine Submissions .......................................................................................................... 3 (202) 789-6024 [email protected] PCBs Washington State’s Suit Against Monsanto Remanded to State Contributors Court................................................................................................................................................ 3 PCB Nuisance Suits from Three California Cities Stayed Pending • Toren Elsen Administrative Decision ........................................................................................................... 4 • Dacia Meng • Zaheer Tajani Federal Tort Claims Act • Shengzhi Wang District Court Permits Landowner to Pursue Hazardous Material Dumping Case Against the U.S. Navy ............................................................................ 4 Insurance Coverage Insured Survives Summary Judgment Motion on Three Pollution Exclusion Exceptions ................................................................................................................. 5 Procedure ABOUT B&D Ohio Natural Resources Damages Claim Dismissed with Prejudice for Failure to Properly Serve Defendant .................................................................................. 6 Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and Preemption dispute resolution. We help clients Sixth Circuit Holds Safe Drinking Water Act Does Not Preempt around the world resolve critical environmental and sustainability issues, Constitutional Claims ................................................................................................................ 6 including the defense of toxic tort and product liability claims. Injunctive Relief Learn more at www.bdlaw.com. Mississippi Federal Court Denies Preliminary Injunction for Failure to Show Threat of Irreparable Harm ................................................................................... 7 Austin, TX | Baltimore, MD | Boston, MA | Englewood, NJ | New York, NY | San Francisco, CA | Seattle, WA | Washington, DC Toxic Tort & Product Liability Quarterly Vol. 10, No. 4, November 6, 2017 PFOA Property Ownership and Water Supply Sources Matter in PFOA Contamination Lawsuits By Shengzhi Wang Illustrating some limitations on common law claims for groundwater contamination, a federal court in New York partially granted and partially denied a motion to dismiss in a cluster of sixteen lawsuits alleging perfluoroocatanoic acid (PFOA) contamination in a village’s groundwater. Benoit v. Saint-Gobain Performance Plastics Corp., No. 16-cv-930, 2017 WL 3316132 (N.D.N.Y. Aug. 2, 2017). The opinion showed how certain intricate issues such as property ownership and source of water supply can alter the outcome of a tort claim even at the pleading stage. The order was certified for interlocutory appeal to the Second Circuit. The defendants, Saint-Gobain Performance Plastics Corp. and Honeywell International Inc., owned a facility in Hoosick Falls, New York, that had been using PFOA since the late 1960s. Discharged PFOA migrated into local soil and groundwater. The plaintiffs are local residents. Most used a municipal water supply; some used private wells. Some plaintiffs rented, while others owned their homes. All wells, municipal or private, were later shown by tests to have excessive levels of PFOA. Most, although not all, plaintiffs claimed that they had elevated level of PFOA in blood. Some plaintiffs asserted specific symptoms. The plaintiffs alleged negligence and strict liability, trespass, and nuisance. The defendants moved to dismiss each complaint for failure to state a claim. The court first addressed the negligence and strict liability claims, which were brought based on alleged property damages and personal injury. The court dismissed the property damage claims from the renter plaintiffs, holding that “a plaintiff cannot recover for damage to property he does not own.” But the court rejected the defendants’ argument that a negligence claim in New York could not be premised on groundwater contamination, citing cases holding the opposite. The court found that the plaintiffs’ alleged reduction in property values, as well as compensatory damages for remediation and restoration, could support property damage claims. Thus the non-renter plaintiffs’ claims survived the motion to dismiss. The plaintiffs sought medical monitoring as the “central remedy” for the personal injury claims. The court declined to dismiss most of these claims, holding that the alleged accumulation of PFOA in blood was sufficient to permit personal injury claims for medical monitoring. However, two plaintiffs did not claim any elevated blood concentration of PFOA, and the court dismissed their claims with leave to amend. The court further commented that, even if the PFOA accumulation in blood were not a sufficient basis, plaintiffs’ medical monitoring requests could still survive the dismissal challenge, because New York law permits medical monitoring to be consequential damages for “an already existing tort cause of action” concerning property, and the plaintiffs had successfully alleged property torts in this case. The court dismissed the trespass claims of the plaintiffs who were on the municipal water supply, reasoning that they did not have the “possessory interest” to support trespass claims, unlike those with private wells. Specifically, the court emphasized that New York law did not recognize groundwater contamination alone as an “invasion of property interest,” but soil contamination, which municipal water plaintiffs did not assert in their complaints, would support trespass. The court therefore granted these plaintiffs leave to amend their complaints. Finally, the court held that the claims could be public – but not private – nuisance. Yet, because public nuisance would only be privately actionable if the plaintiffs suffered “special injury” beyond that suffered by the public, the municipal water plaintiffs’ nuisance claims were dismissed. The private well plaintiffs’ claims survived because the court found the costs of repairing or restoring the private wells were adequately alleged as special losses. The court reasoned that these costs for the private well owners was sufficiently different from the harm suffered by the rest of the area’s population (i.e. municipal water supply users), and that, among private wells, the costs of repair or restoration would vary from case to case, because the alleged levels of contamination were different across properties and the wells on them. Page 2 of 7 Toxic Tort & Product Liability Quarterly Vol. 10, No. 4, November 6, 2017 LONE PINE Federal Court in California Greenlights Discovery After Sufficient Lone Pine Submissions By Shengzhi Wang In a case demonstrating the limits of a Lone Pine strategy, a California federal court allowed a toxic tort class action to proceed after plaintiffs’ experts showed that “Plaintiffs’ case is not meritless or frivolous.” The court therefore declined to dismiss the case and instructed the parties to proceed into discovery. See Trujillo v. Ametek, Inc., Case No. 3:15-cv-01394 (S.D. Cal. July 17, 2017). The plaintiffs are classes of students and teachers from an elementary school bordering a property once owned by the defendant Ametek, Inc. The plaintiffs alleged that chemicals released on the property migrated into groundwater and air at the school and posed significant health risks to the school’s occupants. Plaintiffs seek, among other things, medical monitoring damages. On Ametek’s motion, the court issued a Lone Pine case management order (“CMO” or “Lone Pine Order”; named after Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Sup. Ct. Nov. 18, 1986)), requiring the plaintiffs to show prima facie evidence of exposure along with other elements relevant to their damage claims. The plaintiffs produced their Lone Pine submission along with five experts’ opinions on exposure, increased risk of specific injury, and causation with other information responsive to the CMO. Ametek and its co-defendent objected that the submission was insufficient because it failed to establish a prima facie case and to address specific requests from the court. The court disagreed with Ametek. First, the court held that its specific requests within the Lone Pine Order were not based on “individual elements of a prima facie case for negligence, but rather, [were] factors that the trier of fact must weigh before concluding that the plaintiffs are entitled to medical monitoring damages.” Therefore, the court said, the requests from the CMO were “merely a useful tool” to evaluate whether the plaintiffs’ claims of exposure, injury, and causation would “have enough merit to warrant” discovery. The court further reasoned that the only two “narrow, but weighty” questions in dispute were the level of the plaintiffs’ exposure and whether such level was harmful. The court found that the plaintiffs’ expert case reports answered the two questions with opinions that “Plaintiffs were
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